Week 10

Question 1

type of security rights

Answer 1

Possession
 Pledge
 Lien
 Ownership
 encumbrance

Question 2

EXPLAIN MORTGAGES

Answer 2

– Evolution from a lease – mortgagee had possession
– General law system – mortgagee retains equitable interest and possession not ownership
– Torrens title system – mortgagee retains legal interest and possession

Question 3

what is profit a prendre

Answer 3

– Rights to take things from another person’s land

– The thing taken must be part of the land – minerals, timber, soil, sand, wild animals etc (natural produce of the land)

– How do they differ from sales of good? Intention of the parties

– Where the terms of a profit a Prendre are breached, the grantee of the profit a Prendre may have a right of action in nuisance. The normal remedies in an action for nuisance are damages or the awarding of an injunction
– Good example – Corporate Affairs Commission v ASC Timber Pty Ltd
A profit, in the law of real property, is a nonpossessory interest in land similar to the better-known easement, which gives the holder the right to take natural resources such as petroleum, minerals, timber, and wild game from the land of another

Question 4

define easement

Answer 4

– A right annexed to land to utilise other land of different ownership in a particular manner or to prevent the owner of the other land from utilising his land in a particular manner.

Question 5

what is a dominant tennant

Answer 5

– Dominant Tenement (land) – Benefited Land (the one that has the easement through their land)

Question 6

– Servient Tenement

Answer 6

Burdened Land

Question 7

types of easements

Answer 7

– Positive Easements – rights of entry to enable something to be done on land

– Negative Easements – rights to prevent something being done

Question 8

– It is generally accepted that there are four essential requirements for an easement:

Answer 8

1. There must be a dominant and servant tenement
2. The easement must accommodate the dominant tenement
3. The same person must not own and occupy the dominant and servant tenements
4. The right claimed as an easement must be capable of forming the subject matter of a grant.

E.g. drainage pipes, right of way (driving/walking

Exception to common law requirement when no dominant tenement

Question 9

define easement in gross

Answer 9

exception to common law requirements as no dominant tenement

Question 10

creation of easements

Answer 10

– Express easements
– Implied easements
Easements can be created when land is subdivided or created by long use

Created by an express agreement between parties and then registered on the title of the dominant and servient tenements. It can also be created through implication based upon the intention of parties or necessity. It can also be created by prescription and the doctrine of lost modern grant and the right has been used for a period of 20 years.

Question 11

explain restrictive convents

Answer 11

– A restrictive covenant is a contractual relationship between the covenantee and covenantor. A restrictive covenant is a promise not to do something on the land (e.g. a restriction on the height of a building on the land)

A covenant is a promise made in a deed
– A deed is a special type of binding promise or commitment to do something (like an agreement but technically different)
– Covenants can be positive or negative (restrictive)
– A positive covenant requires an act to be done (to build a house)
– A negative covenant requires an act not to be done (not to build a house)

Question 12

explain removal of easement

Answer 12

An easement can be extinguished or modified by agreement between the parties, by court order or by the registrar depending upon the jurisdiction

Question 13

explain pastoral rights

Answer 13

– Statutory Rights to use land for agricultural purposes (pastoral leases, grazing licences and occupation licences)
– Pastoral Rights v Native Title (Native title being a variety of property rights to land which are held by Aboriginal Australians and Torres Strait Islanders)
– Wik Peoples v Queensland (1996) 187 CLR 1
– Property v personal rights
– A right to possession is always a property right
– A non-possessory right need not be property - so pastoral leases could be personal or property rights (dependent on how the right is defined in the statute)

Question 14

explain a covenent

Answer 14

– A covenant is a promise made in a deed
– A deed is a special type of binding promise or commitment to do something (like an agreement but technically different)
– Covenants can be positive or negative (restrictive)
– A positive covenant requires an act to be done (to build a house)
– A negative covenant requires an act not to be done (not to build a house

Question 15

explain breach of restrictive covenant

Answer 15

Where there is a breach of restrictive covenant, normal contractual principles will be applied to assess the appropriate remedy, e.g. injunction or an appropriate amount of damages

Question 16

explain mineral rights

Answer 16

– Mineral are defined by statute (states)
– Mineral are often owned by the state.
– State granted licences to companies in exchange for the payment of royalties.
– Mineral and petroleum rights
– Rights to explore the minerals
– Rights to take minerals from the land